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Midland Carpet Corp. v. Franklin Associated Properties

Decided: January 6, 1966.

MIDLAND CARPET CORP., A NEW YORK CORPORATION, PLAINTIFF-RESPONDENT,
v.
FRANKLIN ASSOCIATED PROPERTIES, A NEW JERSEY CORPORATION, DEFENDANT-APPELLANT



Sullivan, Lewis and Kolovsky. The opinion of the court was delivered by Kolovsky, J.A.D.

Kolovsky

[90 NJSuper Page 43] Defendant became the owner of factory and warehouse property at the foot of Franklin Street and Paterson Plank Road, Jersey City, on November 15, 1961. Plaintiff occupied some 18,600 square feet of the first floor of the "Plate and Welding Shop" building on the property for "warehousing purposes and for light manufacturing" under a five-year lease dated October 14, 1958 entered into with L.O. Koven & Brother, Inc., defendant's grantor. Only

plaintiff lessee had access to the demised premises which adjoined the lessor's "galvanizing shop" on the southwest.

During the early morning hours of February 13, 1962, a water pipe in the demised premises burst; the water damaged 15 rolls of plaintiff's carpet stored there.

According to plaintiff, the pipe burst when the water in it froze because of defendant's failure to supply sufficient heat to the premises despite a lease covenant requiring it to do so. Defendant contends that (1) if the pipe did freeze, this resulted not from its default but from the failure of plaintiff to comply with its lease obligation to replace the many windows in the demised premises which had been broken by boys throwing rocks from cliffs adjacent to the property; and (2) in any event, the asserted claim may not be successfully prosecuted because by the express terms of the lease, plaintiff had assumed all risk of damage to its property occurring in the demised premises and had agreed that the lessor should not be liable therefor.

After a trial without a jury, the trial court resolved all issues in favor of plaintiff and entered judgment for $4,000, the stipulated damages. Defendant appeals.

Since we are satisfied that provisions of the lease bar the assertion of the claim here made by plaintiff against defendant, the judgment must be reversed. It therefore becomes unnecessary to consider whether under the test outlined in State v. Johnson, 42 N.J. 146, 158 (1964), the record supports the trial court's findings with respect to the alleged breaches of the duties imposed by the lease on the respective parties and the causal relationship of such breaches to the bursting of the pipe.

The lease in this case, 17 pages in length and containing 31 paragraphs or "Articles," reflects a studied attempt by a landlord and tenant of commercial and industrial property to spell out their respective rights and obligations and a distribution of the risks incident to the tenant's occupancy.

Provisions dealing with the distribution of risks of loss and liability for personal injury or property damage and the obligation

to obtain insurance are found in articles Twelfth, Fourteenth and Eighteenth which provide as follows:

"TWELFTH: Lessor shall not be liable for any property damage caused by or resulting from water, steam, electricity, gas, ice or snow, which may be sustained by Lessee or other persons, or for any other damage or injury resulting from carelessness, negligence or improper conduct on the part of any other lessee or its agents or employees, or by reason of the breakage, leakage or obstruction of the water or soil pipes, or other leakage in or about said building.

FOURTEENTH: Lessee assumes all risk of and responsibility for loss of life or injury or damage to the person, or property of any person or persons, corporation or corporations whatsoever (including, but without limitation, the parties hereto and their respective officers, agents, invitees, licensees and employees) occurring within the demised premises; and Lessee further assumes all risk of and responsibility for such loss of life or property or injury or damage occurring without the demised premises from or by reason of the fault, failure or negligence of Lessee, its servants, agents and employees (including, but without limitation) such fault, failure or negligence arising in connection with the non-exclusive use of said existing roadway, and Lessee hereby agrees to release, indemnify and save harmless Lessor from and against any and all such loss, injury and damage and any and all claims, demands, actions, judgments, costs, expenses and liabilities of every name and nature which may arise or result from or by reason ...


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